Monday, September 15, 2008

Although this opinion is "unpublished," and thefore will not serve as precedent in future cases, the legal conclusion should be worrisome for local communities and activists. The Court of Appeals held that third-parties are not implied beneficiaries of "zoning contracts" between a municipality and a developer, and therefore cannot sue the developer or municipality to hold either party responsible when a developer breaches a zoning contract. The Court arrived at this conclusion because zoning contracts apparently are only an exercise of those zoning powers delegated to it by state statute.

Commentary

The Court failed to analyze whether such delegation necessarily supposed that third-parties were beneficiaries of any zoning action. Indeed, as the U.S. Supreme Court held in Euclid so many years ago, zoning is an exercise of the state police powers for the benefit of the public's safety, health, and general welfare. Thus, aren't third parties, in fact and law, beneficiaries of any zoning action by the city? If third parties are not beneficiaries, is the municipality properly exercising within its police powers?